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Barton is profoundly bad law

It’s said that bad facts make bad law. But this is true, I think, only if the courts fail in their duty to apply the law fairly and impartially when bad facts tempt them to distort the law unjustifiably in one party’s favour.

On Oct. 12, the Supreme Court heard the case of R. v. Barton, on appeal from the Alberta Court of Appeal. The Court of Appeal’s decision, which overturned a jury acquittal on a murder charge, is in my view, profoundly bad law. It distorted the rules to reach what it believed to be a desirable outcome, and it did so in the kind of case where appellate circumspection should be at its most acute: a Crown appeal of an acquittal. The appeal in the Supreme Court will now provide an important test of that court’s ability to do its job in the face of bad facts that led to a public outcry. Let me explain why.

Cindy Gladue died in a hotel room on the night of June 22, 2011. She had suffered a gruesome injury to her pelvic region and had bled to death in a room rented by Bradley Barton. Barton had paid her for sex, both on the night of her death and the previous evening. He claimed that her bleeding was the result of a consensual sex act. When he found her dead in the morning, he took off.

Gladue’s death led to widespread, eminently justified public outrage. Her case was taken to be emblematic of the violence faced by too many Indigenous women. Gladue was a deeply sympathetic victim. Barton was the quintessential unpopular accused. He received a trenchant defence, as was his right. And the jury acquitted him, having entertained at least a reasonable doubt as to his claim of accident. The Crown appealed.

The Court of Appeal evidently did not think the Crown’s grounds of appeal were adequate, so it decided to make up some of its own. In a rambling decision, the court excoriated the trial judge for (among many other things) not intervening to prevent counsel from referring to Gladue as a “prostitute.” In its view, this required a defence application under s. 276, the rape shield law. Never mind that it was the Crown that first made such reference, in its opening statement, and that s. 276 only purports to limit evidence led “by or on behalf of the accused.” Never mind that a full narrative of the relationship between Barton and Gladue appeared necessary for the jury to understand how it culminated in her death.

And never mind that the Crown, which was complicit in any impropriety, made no objection whatsoever along these lines. Presumably, the trial Crown took the view that misrepresenting Barton and Gladue’s relationship to the jury was not necessary to a fair trial. The Court of Appeal disagreed, allowing the Crown to reverse its position on appeal and obtain a new trial based in part on its own alleged misconduct.

The Court of Appeal also found reversible error in the trial judge’s failure to tell the jury that Barton’s after-the-fact conduct — fleeing the scene, lying about what happened — could be used to demonstrate his guilt and lack of credibility. The trial Crown, who had contributed to and approved the jury charge, obviously didn’t think there was anything wrong with this lack of instruction. Neither did the appeal Crown, who didn’t raise it on appeal. The Court of Appeal raised this issue on its own motion. An impartial observer would, therefore, be skeptical of the Crown’s submission in the Supreme Court that the error was so obvious that it justified the extraordinary step of overturning a jury acquittal.

In any event, the idea that the jury somehow failed to grasp that it could use the accused’s lies and obfuscation to evaluate his credibility defies logic. When raised by the defence, these types of arguments are commonly dismissed by appeal courts as fanciful, in that they deny the jury’s ability to apply common sense. That’s not the case here.

Other arguments, too numerous to detail here, were also raised in opposition to the acquittal. All found favour with the Court of Appeal. The court’s real grievance, I think, was that it disagreed with the jury verdict. But that, in Canada, is not a valid basis upon which to overturn an acquittal. If it were, why have a constitutional right to a jury trial in the first place?

In fact, Canada is an outlier in giving the prosecution a relatively generous right of appeal from acquittals. Some people believe it goes too far. The Alberta Court of Appeal, a court notoriously hospitable to Crown appeals, appears to think it does not go far enough. And the Court of Appeal’s decision found a receptive audience, as witnessed by the many interveners who lined up on the side of the Crown in the Supreme Court. For people of a progressive mindset, however, giving the Crown a broad right to an appellate “do-over” should be fundamentally anathema. For one thing, its impact would be felt most acutely by vulnerable populations that are already represented disproportionately among the ranks of the criminally accused.

Overturning the Court of Appeal and reinstating Barton’s acquittal would be politically unpopular. This will be a crucial test of the Supreme Court’s institutional integrity — one that we should all hope it does not fail to meet.

Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at mgourlay@hhllp.ca.

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